An update on the rights of EU citizens post Brexit

As the Brexit deal begins, ever so slowly, to take shape, the UK Government has made welcome concessions on the position of EU migrants already in the UK or who are thinking of coming to the UK to live and work after Brexit.

The Government has recently confirmed that certain key provisions contained in the draft Withdrawal Agreement proposed by the EU concerning citizens’ rights will have effect during and after the Implementation Period. It has now been agreed that the Implementation Period will last from Brexit on 29 March 2019 until 31 December 2020.

This deal does not currently apply to nationals of Norway, Lichtenstein, Iceland and Switzerland.

Irish citizens are not affected and may continue to reside in the UK post-Brexit.

EU nationals who are living in the UK before Brexit

These EU nationals who have lived in the UK for at least five years must apply for settled status within 6 months of the end of the Implementation Period i.e. by 30 June 2021. Anyone who has been here for less than 5 years must apply for temporary status within the same timeframe. Those who do not apply within 6 months of 31 December 2020 will be in the UK without permission and may be subject to removal.

Technically the deal only applies to those who are in the UK as a worker, student, self-employed or self-sufficient person. However, the UK Government has indicated that applicants will only need to show that they have been living in the UK and undergo criminality checks. Applicants will not need to show that they had comprehensive health insurance.

Moving to the UK during the implementation period

EU citizens and their family members will continue to be able to move to the UK and to work here during the Implementation Period. However, those who stay for more than three months will need to register.

As part of the recent deal, EU citizens arriving in the UK during the Implementation Period will now receive the same rights and guarantees as those who were in the UK before the Implementation Period. This means that they will be able to apply for settled status after spending five years in the UK.

EU nationals who arrive in the UK during the Implementation Period must apply for temporary status within 6 months of the end of the Implementation Period.

Family reunion rights

EU citizens and, importantly, their family members who arrive in the UK during the Implementation Period, are resident here and who have registered will be permitted to stay in the UK after the end of the Implementation Period.

However, the Government has stuck to their position that certain family members who wish to join their EU family member in the UK after the Implementation Period will need to apply under the far more onerous UK immigration Rules (ie those Rules which apply to the family members of British nationals). For example, if an EU citizen living in the UK marries someone living outside of the UK after 31 December 2020 their spouse would have to apply under the Immigration Rules to join them in the UK. These rules are much more stringent and restrictive than the current EEA rules and should be carefully considered and factored into any future immigration plans.

The EU are not on board with this approach as it effectively amounts to different treatment between EU citizens arriving in the UK before and after Brexit. This is likely to be an area of serious contention and the UK may well have to make further concessions.

Can EU nationals lose their settled status?

EU nationals who have obtained settled status may lose their settled status if they spend more than five consecutive years outside of the UK.

Further, any EU citizen or family member with a criminal conviction or any other issue which affects their good character from 31 December 2020 could have their status revoked and/or be banned from applying for British nationality for a period.

Who will police this area of law?

The UK has also conceded that the Court of Justice of the European Union will oversee the interpretation of EU law for the rights of EU citizens. This will be the case for eight years after the end of the Implementation Period. The UK had previously sought to resist this.